Saturday, November 26, 2022

Analysis: Pro-Trump US Prosecutor loses ‘Russiagate’ Jury Verdicts but PR Battles Loom

Andrew Kreig, a Global Strat View advisory board member, edits the non-partisan Justice Integrity Project in Washington, DC, following a long career in law, journalism, and business. He covered the US Justice Department full-time for five years while working for the Hartford Courant in Connecticut and holds law degrees from both Yale and the University of Chicago. He previewed in May for GSV the DOJ’s major “Russiagate” trials and is shaping several years of his research about the investigation into a book. 

Washington, DC – A Virginia jury verdict in October probably thwarted the last hope of Trump supporters to use a special counsel’s investigation of “Russiagate” to prove criminally in court that rogue members of the FBI conspired with Democrats to make false allegations of Russian help for the 2016 Trump presidential campaign. 

Trump supporters in Congress and the media are predicting, however, that they can use Justice Department Special Counsel John Durham’s final report to keep conspiracy allegations alive despite his losses in court. Trump Attorney General William Barr named Durham in 2019 to investigate Trump’s allegations that Democrats working with FBI personnel smeared his campaign and several advisors with false theories of “collusion” with Russians.  

“The special counsel’s looming report is the only chance the American people will ever get to hold the Clinton campaign and the FBI accountable for Russiagate,” according to a National Review article on Oct. 22, four days after the jury verdict, by Andrew McCarthy, a frequent pundit on Fox News and conservative media. 

Meanwhile, Newsweek published “Durham Blasted by Experts After New Acquittal: ‘Laughed Out of Court Twice'” by Aila Slisco, who reported mockery of Durham elsewhere in the legal community for not fulfilling Trump’s prediction that the prosecutor would prove “the crime of the century” in a massive conspiracy. Samples: 

Laurence Tribe, professor emeritus of constitutional law at Harvard University, told Newsweek that the acquittal was evidence Durham’s “groundless mission has now failed yet again, putting yet another dismal marker on William Barr’s shameful record as Trump’s henchman and the worst Attorney General in our nation’s history.”

“John Durham racks up another acquittal, this time on a case he tried personally,” legal analyst and former federal prosecutor Elie Honig tweeted. “His investigation will go down as a shameful abuse of prosecutorial power in service of political vengeance. Juries — our most basic civilian bulwark — have firmly rebuked this abuse of power.”

The Durham Probe

John Durham

Durham, a career prosecutor whom Trump nominated in 2017 to become U.S. attorney for Connecticut, resigned in 2020 from that political post but continued thanks to his appointment by the now-departed Barr to work for the Justice Department as special counsel. 

Many conservatives call Durham’s target “Russiagate,” a term derived from the “Watergate” scandal that toppled President Nixon in 1974. Trump critics who assert that solid evidence shows Russian complicity, collusion and/or conspiracy also use the term occasionally.

The Durham prosecution targeted at trial the US-based Russia expert Igor Danchenko, a consultant, on five charges of making false statements to the FBI to advance their probes. Durham’s supporters anticipated that Danchenko’s conviction would vindicate Durham’s team, especially after its embarrassing loss in May when a jury promptly acquitted lawyer Michael Sussmann from a false statement charge involving his tip to the FBI in 2016 about suspected Russian help for Trump.

The May 2022 issue of Global Strat View previewed the Sussmann trial, including the Durham team’s hopes of tying Sussmann’s actions to the Democratic Party and the Hillary for President campaign of Hillary Clinton that used Sussmann’s then-law firm Perkins Coie for political and cybersecurity work. 

Durham’s efforts to link Clinton to Sussmann’s tip created major headlines during the trial in the pro-Trump media. That led to one such little-noticed judicial rebuke at sidebar out of the jury’s hearing when Durham’s team asked former Clinton Campaign Manager Robbie Mook to read to the jury a part of a memo that prosecutors had been ordered to redact before showing Mook.  

In his testimony, Mook stated that the campaign paid Perkins Coie a flat monthly retainer for services that seemed to be worth so much more than the retainer that he did not bother reading the billing details because of other campaign obligations. He also testified that neither he nor Clinton knew that Sussmann’s firm had hired Fusion GPS to draw on Steele’s research. Neither did he know, he testified, that Sussmann – a former federal prosecutor working with the FBI on behalf of his client, the Democratic National Committee, to solve a hack of DNC computers during the campaign – was planning to provide the FBI with a tip about another matter involving Russia.

Michael Sussmann

The jury in May promptly acquitted Sussmann, thereby dealing a major public relations blow to Durham’s investigation and its supporters such as Trump and Barr. 

Trump had been calling Durham “Bull Durham” to tout him as an exceptionally determined and skilled prosecutor who would vindicate Trump from claims in the so-called “Steele Dossier” and implicate Clinton and FBI personnel in crime. 

Sussmann’s acquittal thus created a spotlight on Durham’s prosecution of Danchenko, a former Brookings Institution Russia expert who went on to work as an independent consultant, first helping consultant and former British spy Christopher Steele and then the FBI. 

Durham obtained a grand jury indictment last year charging Danchenko with five counts of false statement to the FBI regarding his sourcing for Steele in the 2016 “dossier,” which consisted of reports of unconfirmed raw intelligence. 

Steele, a former top Russian expert for the British spy agency MI6, argued in 2016, along with certain Perkins Coie staff, that his raw findings might prove valuable to the FBI in a probe the agency had begun independently of purported Trump campaign ties to Russians. 

Steele recruited Danchenko to help him. Fusion GPS was a research consultancy co-founded by former Wall Street Journal reporters Glenn Simpson and Peter Fritsch, who co-authored the 2019 book “Crime in Progress: Inside the Steele Dossier and the Fusion GPS Investigation of Donald Trump” published by Random House. 

The conservative hedge fund tycoon Paul Singer had initially hired Fusion GPS as part of a “stop-Trump” effort within the Republican Party. Singer stopped his funding because of Trump’s victories in GOP primaries. Fusion GPS then marketed its services to the law firm Perkins Coie.

Danchenko Verdict

After Sussmann’s acquittal, Durham’s conservative supporters in the media fanned excitement with previews of the Danchenko trial to be held in the Washington suburb of Alexandria, VA.

U.S. District Judge Anthony Trenga, a Republican nominee of President George W. Bush, denied a defense motion to dismiss the indictment for lack of evidence. But the judge wrote that his decision to permit the trial was a close call legally, a warning shot to all concerned.

The indictment’s five counts focused on whether Danchenko criminally lied to the FBI when he stated he had never “talked” during his research with Democratic consultant Charles “Chuck” Dolan, Jr. After the prosecution rested its case, the judge dismissed the count for lack of evidence that Danchenko had ever “talked” with Dolan since they communicated by email and FBI agents failed to nail down the difference. 

That left four counts of alleged false statements by the defendant, each involving Sergei Millian, then head of the Russian-American Chamber of Commerce. In essence, Danchenko reportedly said in four 2017 conversations with FBI personnel that he had July 2016 communication by phone either with Millian or someone else pretending to be Millian. 

Prosecutors argued that Danchenko must have been lying and charged him with four counts. They said their search records for listed phones showed the two men had not spoken. Lawyers for Danchenko, who did not take the witness stand, argued that such a call could have occurred via a mobile Internet application not listed in the searched records. Pundit Marcy Wheeler, who reported in depth about Durham’s probe on her Emptywheel blog, mocked him and his team for not grasping that world-traveling international consultants often use mobile apps with security features when undertaking sensitive discussions. 

The defense also argued that Steele’s “dossier” containing Danchenko’s research was shared with the FBI after the agency had already launched its “Crossfire Hurricane” probe of alleged Russian ties based on other information not part of the trial. Also, Danchenko had told his FBI interviewers that he regarded some of the Steele dossier information as unreliable raw intelligence, although he asserted responsibility for passing on a majority of it. 

Durham’s team failed to present as witnesses either Steele or Millian, both now overseas. 

Jurors witnessed the unusual spectacle of Durham jousting with two of his own witnesses, the two key FBI agents who had interviewed Danchenko. The prosecutor suggested they unduly sympathized with the defendant, whom the FBI paid more than $200,000 as a consultant. 

In a striking assertion, longtime FBI counterintelligence agent Kevin Helson said Danchenko’s prosecution was “dangerous” and had hurt the nation’s ability to gather intelligence.

Durham’s dispute with FBI agents reassured some pro-Trump, anti-FBI commentators outside of court as confirming their suspicions of the agency. 

But the display could hardly have helped the prosecution with the jury since neither Danchenko nor FBI agents were accused of conspiring with each other. More generally, the disputes also illustrated how Durham’s team had repeatedly threatened FBI witnesses and consultants with criminal prosecution in the Sussmann and Danchenko cases if they failed to support the prosecution’s theories with sufficiently precise testimony. 

The jury spent about nine hours deliberating (including meal breaks) before acquitting Danchenko on all four charges on Oct. 18. 

With the expiration of a Virginia grand jury, the tally for the 3.5-year Durham investigation is acquittals for the two major defendants and plea bargain with a sentence of probation for former FBI lawyer Kevin Clinesmith, whom DOJ Inspector General Michael Horowitz had exposed (and whom Durham prosecuted) for exaggerating evidence in a warrant seeking renewal of the surveillance of a Trump campaign aide. 

The Washington Post editorial board opined that Durham-Barr’s track record showed they pursued a partisan, pro-Trump agenda. Pro-Trump media differed, saying the verdicts showed that Trump cannot obtain justice.

What’s Next?

Attorney General Merrick Garland

Durham is expected to submit a report to Attorney General Merrick Garland, who has discretion on whether to release it publicly. Trump supporters hope Durham relitigates his suspicions of Democrats and the FBI via the report and that public pressure will enable him to testify on Capitol Hill and use the media to denounce Democrats and those FBI personnel he suspects of wrongdoing. 

Others note that a Republican director has always led the FBI, is seldom regarded as a left-of-center institution– and that Barr and Durham may face scrutiny themselves if they go overboard in partisan follow-ups. 

As for those acquitted or otherwise investigated at great fanfare? Few express any concern about them and their family hardships. Defendants and many witnesses often lose their jobs and must spend vast amounts on defense lawyers, with seldom any accountability for prosecutors. That’s all part of what we accept as the “justice” process.

Regarding battles to come? 

Pro-Trump pundit Andrew McCarthy, a former federal prosecutor, looks forward to new fights and disclosures. “The report has always been John Durham’s primary job,” he wrote for the National Review. “There was never a realistic chance that he could make a comprehensive Russiagate record in a major prosecution.”

“He took a calculated risk by bringing comparatively trivial cases against minor players before what were sure to be hostile jury pools,” McCarthy continued, illustrating the notion in some circles that suspects must be guilty even if proof is lacking. Of Durham, McCarthy wrote, “He has gotten the predictable results: acquittals across the board.”

A different view came from the Washington Post’s editorial in its Oct. 20 print edition: 

The FBI does not look faultless. Most notably, the agency’s treatment of 2016 Trump adviser Carter Page was scandalous: The FBI provided false information and withheld material detrimental to its case in multiple court applications to surveil the aide. These lapses, already documented in Mr. Horowitz’s report, are cause for continued reform. A senior FBI official testified this month that the agency offered retired British spy Christopher Steele “up to $1 million” to prove the allegations in a scurrilous dossier he compiled on Mr. Trump, which is also bad.

But these isolated failings evidenced nothing like the dark plot to take down Mr. Trump that the former president and his allies imagined Mr. Durham would uncover. The grand denouement that the special counsel teased in filings throughout his investigation never unfolded, because there was nothing to unfold.

Meanwhile, former special counsel Robert S. Mueller III’s 2019 report on Russia’s interference efforts, the Trump team’s determination to benefit from those efforts, and connections between the two, still show that there was ample reason for the FBI to investigate the 2016 Trump campaign, despite Trump allies’ persistent claims to the contrary.

And former federal prosecutor Dennis Aftergut, now counsel to the group Lawyers Defending American Democracy, targeted Barr and Durham more personally in a column for NBC News on Oct. 19:

“Barr’s attempts to rehabilitate his image cannot erase his sad final legacy as a Trump enabler,” Aftergut wrote. “Special counsel John Durham, who once enjoyed a solid reputation as a prosecutor, now owns what may be the worst trial record of any special counsel or independent prosecutor in American history: no wins, two losses.”

 

Author profile
Andrew Kreig

Andrew Kreig, a member of the Global Strat View advisory board, edits the non-partisan Justice Integrity Project in Washington D.C. following a long career in law, journalism and business. He was a founding board member of the Truth and Reconciliation Committee and is a consulting attorney pro bono for the Sirhan Sirhan defense. He holds law degrees from the University of Chicago and Yale University, and has been a DC-based attorney for three decades.

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